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TidBITS#822/27-Mar-06

Your Honor, I object! We certainly didn't intend this issue of TidBITS to focus on legal battles. It wasn't our idea for the French to propose a law that would require Apple to allow any music player to play music from the iTunes Music Store. Plus, we simply couldn't have predicted that the Apple Computer v. Apple Corps lawsuit would be scheduled for the same week that the Creative Commons license was upheld in Dutch court. And for the record, Your Honor, we also have a new DealBITS drawing, a great MacNotables podcast on email clients, and a slew of TidBITS Talk discussions. The defense rests.

MacNotables Podcast on Email Clients -- Few types of software engender the same level of loyalty as email clients. It makes some sense; an email program is the communications lifeline to the world for many of us, instant messaging notwithstanding, and we all end up with a lot of data - messages, addresses, carefully constructed folder hierarchies - in our email programs that would be difficult to transfer to another clientShow full article

MacNotables Podcast on Email Clients -- Few types of software engender the same level of loyalty as email clients. It makes some sense; an email program is the communications lifeline to the world for many of us, instant messaging notwithstanding, and we all end up with a lot of data - messages, addresses, carefully constructed folder hierarchies - in our email programs that would be difficult to transfer to another client. But at the same time, the grass always seems greener on the other side of the fence. Entourage just picked up Spotlight and Sync Services support that was previously enjoyed only by Mail users; Mailsmith has killer filtering capabilities; and Eudora offers a level of serious geekiness that many people swear by. If you're considering a switch to a new email program or just want some confirmation that your current program is the right one for your needs, tune in to the latest MacNotables podcast. In it, I, Andy Ihnatko, Dan Frakes, and Chuck Joiner discuss what we like and don't like about our current email programs and others we've used, including Eudora, Mail, Entourage, PowerMail, Mailsmith, Gmail, and yes, even Elm. This was definitely one of my favorite episodes of MacNotables, so if you're at all interested in the world of email on the Mac, give it a listen.

The Ukrainian Mac development firm BeLight Software continues to extend their flock of special purpose publishing programs, adding the CD/DVD labeling software Disc Cover to the collection of Business Card Composer, Mail Factory, and Swift PublisherShow full article

The Ukrainian Mac development firm BeLight Software continues to extend their flock of special purpose publishing programs, adding the CD/DVD labeling software Disc Cover to the collection of Business Card Composer, Mail Factory, and Swift Publisher. Like BeLight's other programs, Disc Cover offers a clean interface for arranging text and graphics, this time within the limitations of CD/DVD disc labels (along with jewel case covers, booklets, and even odd items like mini CDs/DVDs, business card CDs/DVDs, and VHS labels). It shows alignment lines as you move objects around, integrates the image editing features from BeLight's free Image Tricks, and offers a slew of backgrounds and other images you can use. There's also full integration with iTunes and iPhoto, plus the capability to pull in MP3 information and pictures from folders in the Finder. And if you're not feeling creative, Disc Cover offers a bunch of pre-designed templates you can customize.

In this week's DealBITS drawing, you can enter to win one of three copies of Disc Cover, each worth $34.95. Entrants who aren't among our lucky winners will receive a discount on Disc Cover, so be sure to enter at the DealBITS page linked below. All information gathered is covered by our comprehensive privacy policy. Be careful with your spam filters, since you must be able to receive email from my address to learn if you've won. Remember too, that if someone you refer to this drawing wins, you'll receive the same prize as a reward for spreading the word.

Now this is interesting. The non-profit organization Creative Commons offers a set of copyright licenses that enable content creators to grant additional rights beyond those normally provided by copyright law - we publish TidBITS under a Creative Commons license (see "Seven Hundred Issues, a CMS, and Creative Commons" in TidBITS-700)Show full article

Now this is interesting. The non-profit organization Creative Commons offers a set of copyright licenses that enable content creators to grant additional rights beyond those normally provided by copyright law - we publish TidBITS under a Creative Commons license (see "Seven Hundred Issues, a CMS, and Creative Commons" in TidBITS-700). But like all open source licenses, as far as I know, none of the Creative Commons licenses had been tested in court, and without that trial by fire, no one really knew if the licenses would hold up to any future suit. Years ago, when I was researching open source licenses to see what could be used for XNS, the general consensus I heard was that open source licenses likely wouldn't withstand a serious (and well-funded) legal challenge, but none had ever been so tested, largely because trying to break an open source license legally would be horrible PR for any company.

Now, however, a Creative Commons license has been upheld in court. Former MTV VJ and podcaster Adam Curry had posted photos of his family on the photo-sharing site Flickr, assigning them an Attribution-Noncommercial-Sharealike Creative Commons license in the process. Apparently, a Dutch tabloid published those photos without getting Curry's permission, thus violating the terms of the Creative Commons license. Curry sued for copyright and privacy infringement, and the District Court of Amsterdam agreed with him, stating clearly that the conditions of the license were not properly observed. The magazine's publisher claimed it was misled by the phrase "This photo is public" (a standard bit of Flickr boilerplate, as I understand it) and therefore failed to check into why the photos were also labeled with the Creative Commons "Some rights reserved" tagline.

The utility of this decision in my mind is that it affirms that the Creative Commons licenses don't suffer from some sort of legal loophole that would enable a lawyered-up company to infringe upon them with impunity.

After I posted the above in ExtraBITS, Contributing Editor Glenn Fleishman and I had a bit of a discussion about whether the decision was really that positive. Glenn was concerned that the Dutch court essentially slapped the wrist of the magazine publisher: throwing out the privacy infringement claim (apparently the magazine also published the name and school of Curry's 15-year-old daughter, along with her means of transport to school), not setting a fine, and threatening a fine of 1,000 Euros (about $1,200) per photo for any future violation. To Glenn, the lack of any damages undermined the fact that the Creative Commons license had been upheld.

Rather than pretend to be a lawyer in the argument, I turned to a real one - our friend Fred von Lohmann of the Electronic Frontier Foundation (EFF). In essence, Fred told us that the remedies were an entirely separate issue, since the remedies are defined by national law, and that you couldn't really draw any conclusions about the strength of the license by the damages awarded. Fred also noted that although the judgment upholding the validity of the Creative Commons license is good news, it's mostly important in the Netherlands, since the idea behind Creative Commons licenses - that copyright owners should be able to opt for less than full protection of their work - remains legally untested in many parts of the world.

You may have read that the French are at it again: harassing Apple, and requiring them to open the FairPlay digital rights management (DRM) system used to protect music files sold by the iTunes Music StoreShow full article

You may have read that the French are at it again: harassing Apple, and requiring them to open the FairPlay digital rights management (DRM) system used to protect music files sold by the iTunes Music Store. Well, like much reporting these days, this is both correct and incorrect. As an American living in France, I've been following this situation closely, and it's time to set the record straight and look exactly at what this new law will require, if it is indeed passed.

First, the law has not yet been passed. It has only gone through the first of several steps, that of a "first reading" of the law by the lower house, the Assemble Nationale (roughly equivalent to the House of Representatives in the U.S.). The bill then goes to the Senat, then back to the Assemble and the Senat again for final votes. These first two votes are more about getting the substance in order, and amendments can be added at any point in this process. Even after the law is passed, it goes to the Conseil Constitutionnel which has to approve it and refine the wording and penalties it contains. So, after this brief course in French parliamentary procedure, you can see that, so far, nothing has been decided.

The situation has been even more confusing because, in a textbook example of clueless legislative procedure, the bill that was introduced has seen amendments added, removed, and added again, creating quite a bit of confusion both within France and without. (Add to that the fact that many media have published articles based on faulty translations, and you've got a nice legal and linguistic stew to try and understand.) At one point in the process, newspapers were trumpeting the "global license" that was in the bill: a sort of indulgence that, for a modest monthly fee, would protect users from prosecution from downloading music illegally. While this idea may, in principle, be a good one, it would only have allowed those who paid the fee to download what is currently available illegally; it would not provide a true global license to download all music available, since record companies would not suddenly make their entire catalogs freely available on-line.

But what is getting the most attention in recent days is the clause in the law that would require Apple to open up its FairPlay DRM system so users could purchase music from the iTunes Music Store and play it on any music player. This clause states that DRM used "...must not prevent... interoperability, while respecting copyright." In other words, Apple - along with Microsoft, Sony, Real Networks and any other companies using DRM - would have to provide the necessary APIs to others to allow their music to be used. It is not clear how this would be implemented, however: would this require that DRM be stripped, or simply that all music players would have to be able to manage all forms of DRM-protected music? Most likely the latter; otherwise the record labels, who saw in this bill a new lease on life, would complain.

Another important point is that DRM is currently illegal in France... well, sort of. The courts have sided with individuals in every case where DRM prevented them from using their music as they want, and "copy controlled" CDs have been, several times, declared illegal in France. These decisions have been appealed, but part of the legal basis for this right to private copies lies in the fact that every blank CD and DVD, along with every hard drive, iPod, flash memory device, or other data storage device includes a tax, which is divided among record labels and movie studios. Because of this, blank CDs, to give just one example, cost about four times as much in France as in neighboring England. This tax is levied because of the assumption that every blank CD or DVD, every iPod or hard disk - regardless of what you use them for - is filled to the brim with "stolen" copyrighted content. Yet nothing in this new copyright bill removes this tax, which brings a fair chunk of change to musicians, producers and songwriters each year.

As I pointed out earlier, this bill has not yet been passed. But Apple has commented on it, saying that it would inspire a "state-sponsored culture of piracy," because cracking DRM would not only be legal, but obligatory, at least among manufacturers. (It is interesting to note that, in 2002, Steve Jobs said, "If you legally acquire music, you need to have the right to manage it on all other devices that you own," although he was most likely referring to other devices such as a laptop, iPod, and desktop computer.) Soon after, U.S. Commerce Secretary Carlos Gutierrez threw his tentative support behind Apple's statement.

So journalists have been focusing on this aspect of the issue, forgetting that Apple is not the only company being targeted. It's also easy to forget that it is the record companies who demand DRM, not Apple (though I doubt Apple would really want to sell unfettered music) and the same record companies who will suffer in the long run. Apple, if this bill passes, has an easy way out: they just close the French iTunes Music Store. Anyway, most iPod users have music ripped from CDs on their iPods, not music they've purchased from the iTunes Music Store, and this law won't change anything for them. It will just cripple digital music sales.

Regardless of what happens - whether the bill passes as is, whether it is accepted by the European Union - it raises a broader issue. Will Sony have to let me use a PlayStation game on an Xbox? How about DVDs - will the movie studios finally be forced to allow users to copy them to laptops to watch while riding the TGV (France's high-speed train), or simply to make copying to a video iPod easier? While they're at it, what about DVD region codes? Why can't I buy a DVD from the U.S. and play it here?

Let's go one step further. As long as we're on the subject, what about razor blades? That was the first example of vendor lock-in, which this law is hoping to eliminate. Can I get Schick to translate my blades to work on a Gillette? And when I need new parts for my Saab, can I require Renault to make theirs work for me?

The real point of all this is that the French members of parliament are clueless about technology in general and digital technology in particular. They're opening up a huge can of worms in suggesting that interoperability should be guaranteed. While in principle interoperability is a good thing, in practice it is an absolute principle. You cannot expect it to work in one area without it applying in all areas. Why single out only music? Are there Microsoft-funded lobbies at work behind the scenes, twiddling the minds of French legislators? Microsoft would certainly like this bill to go through, but do they really think that other companies will sell more MP3 players? It's not about the content, in this market; it's the design and ease-of-use. And besides, would Microsoft really like being forced to make all of their software work on the Mac to meet the letter of such an interoperability law?

In any case, as one French member of parliament said, "it will take at least a year" to iron out all these issues. By then, France will be approaching new presidential elections, then parliamentary elections, and it is more than likely that things will be very different. Also, the European Union has its say, as do the courts. So calm down, and don't expect Apple to be tossed out of France any time soon.

[Kirk McElhearn is the author or co-author of a dozen books, including "Take Control of Customizing Microsoft Office." His blog, Kirkville, features articles about Mac OS X, the iPod, iTunes, and much more.]

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This week, Steve Jobs's Apple Computer and the Beatles' Apple Corps are scheduled to go to trial in England, marking a new phase in a trademark dispute which has clung to both companies for more than a quarter centuryShow full article

This week, Steve Jobs's Apple Computer and the Beatles' Apple Corps are scheduled to go to trial in England, marking a new phase in a trademark dispute which has clung to both companies for more than a quarter century. The outcome could define the nature of Apple Computer's now-burgeoning iPod and digital music businesses.

Yesterday -- The origins of Apple v. Apple are somewhat shrouded in modern myth and contradiction, but here are the basics.

In 1968 the Beatles formed a new business to handle their business and financial affairs, as well as to serve as a tax shelter and as a corporate base from which to launch their products and ideas. Named Apple Corps (get it?), allegedly by Paul McCartney, the company was originally to have five divisions (electronics, film, publishing, records, and retail) and the company supposedly threw open its doors - and its wallet - to anyone with "worthwhile" artistic projects. As the Beatles grew apart and eventually disbanded, Apple Corps degenerated and nearly collapsed in a morass of legal and financial chaos. After several years, the dust settled with the company mostly serving as the licensing agent for the never-ending menagerie of Beatles products, and with former Beatles road manager Neil Aspinall still in charge to this day. Apple Corps has a reputation for keeping a very tight hold on Beatles-related property and licensing.

Half a world away in Mountain View, California, Steve Jobs, Steve Wozniak, and Ronald Wayne founded Apple Computer on April 1, 1976. (Astute readers will note Apple's 30th anniversary is less than a week away.) Many sources claim the name is a direct homage to the Beatles' Apple Corps (and Steve Jobs is a long-avowed Beatles fan). Apple's official line is that the company founders were merely concerned with having a name which came before "Atari" in the telephone book: Apple's founders had all previously worked at Atari.

It might seem odd for two companies to have the same name, but in legal terms, there's no fundamental problem with companies using the same name or trademark so long as it doesn't confuse consumers. In practice, this usually means they can't be in the same business (or in related businesses) and/or operate in the same markets.

One story goes that in 1978, George Harrison saw an advertisement for Apple Computer and asked Neil Aspinall if Apple Corps should be concerned. In any case, in 1978 Apple Corps filed a trademark infringement suit against Apple Computer, which was settled in 1981 for an undisclosed amount (rumored to have been $80,000). The companies also agreed they would share the "Apple" trademark, with Apple Computer sticking to the computer business and Apple Corps sticking to entertainment.

You're Going to Lose That Girl -- In 1987, computers started infiltrating multimedia and music production, leading Apple Computer to try renegotiating its agreement with Apple Corps. However, nothing could be worked out, and in 1989 Apple Corps again sued Apple Computer, this time for violating the earlier 1981 agreement by including sound playback and MIDI capabilities in Macintosh computers. After a great deal of painful litigation, Apple Computer and Apple Corps settled again in 1991, for a reported $26.5 million.

This second round of litigation had some long-standing impacts on Macintosh software. For instance, the suit kept Apple's MIDI Manager from being an official component of System 7. Despite the Mac's long-standing use in music performance and production, lack of system-level capabilities made MIDI on a hazy thing for years, with musicians frequently cursing Apple's unsupported MIDI Manager, or third-party MIDI implementations like OpCode's (temperamental and long-unsupported) OMS. And if you've ever wondered about the sound "Sosumi" which shipped with System 7 (and is still in Mac OS X), well, it's not the name of some exotic Japanese xylophone. Say "sosumi" out loud and its intentions become clear; the sound's original name was "Let It Beep."

Can't Buy Me Love -- In July 2003, Apple Corps opened fire on Apple Computer again, this time alleging the iTunes Music Store is in violation of the 1991 settlement agreement. On the surface, it seems like an open and shut case: Apple Computer agreed to stay out of the music business, and there's no denying the iPod is a music device, and that the iTunes Music Store is in the business of selling music. So why is this case going to trial?

One of the interesting developments of Apple Corps' current lawsuit is that previously undisclosed details of the companies' 1991 settlement have become public. In 1991, Apple Corps agreed to let Apple Computer use its own marks on items which fell within Apple Corps field of use (e.g., entertainment), so long as Apple Computer didn't sell "physical media delivering pre-recorded content." An example in the agreement bars Apple Computer from selling a CD of Rolling Stones songs.

As most people know, the iTunes Music Store doesn't sell physical media: it sells digital tracks which customers download and play on their computers, an iPod, or (with some determination) other music devices. The main question before the U.K. court is whether, in legal terms, those digital versions of recorded audio constitute "physical media." Some analysts say Apple's iTunes service falls safely within the bounds granted to Apple Computer outlined in the 1991 agreement; others say Apple Corps will walk away with a gargantuan ruling.

Baby You're a Rich Man -- It's safe to assume the companies have attempted to settle this dispute out of court. Although Apple Computer made a bid to move the case to a potentially more-friendly venue in California (the rejection of which accounts for key terms of the 1991 agreement now being available), plainly the computer maker is comfortable with going to trial and stating its case before a judge. Why is Apple willing to put its market-dominating iTunes Music Store at risk, compared to the relative safety of a negotiated settlement?

One reason is that the door isn't closed on a settlement: the two Apples can work toward an out-of-court agreement up until the moment the judge issues a ruling, and keep working on a settlement while appeals processes are underway. Going to trial just means that both sides will be airing their arguments and evidence in public. Both companies have previously indicated they're willing to let these disputes drag on for years, so, even going to trial, a quick resolution seems unlikely.

Another reason is that, despite Apple Computer's newfound music business essentially redefining the company, the computer maker may not have much to lose in this case. In trademark disputes, damages are typically limited to profits derived from violations. Apple Corps' dispute with Apple Computer centers on the iTunes Music Store, not the company's now-iconic iPod music players. By most accounts, Apple Computer doesn't earn a tremendous amount of money from its iTunes Music Store: rather, the bulk of its music profits are driven by iPod sales, which Apple Corps is not alleging infringe on its trademarks.

A few back-of-an-envelope calculations here: let's say Apple sells songs on the iTunes service for $1 apiece. (Yes, $0.99 is the typical per-price track in the U.S., but collections and albums have a lower per-track price, while international versions of the iTunes Music Store often have higher per-track prices, so $1 a track seems fair). Of that dollar, between 65 and 75 cents go to the record label, and another 20 to 25 cents is consumed in management and distribution costs (servers, bandwidth, encoding; designing, running, and managing the store; customer support, etc.). So each track nets Apple Computer a few cents, at best. In round numbers, let's say iTunes has sold a billion tracks (that milestone went by last month), so in about three years of operation Apple Computer has earned perhaps $20 to $40 million on music sales. Let's double that to allow for fuzziness and video sales, which undoubtedly constitute "pre-recorded content."

How much of $80 million can Apple Computer afford to lose to Apple Corps? A lot. Apple's total assets at the end of 2005 totalled more than $14 billion, with over $8.5 billion being in cash, cash equivalents and short-term investments rather than buildings and inventory. Apple Computer may not be very afraid of Apple Corps right now.

The Long and Winding Road -- Speculation regarding this case has been rampant, particularly when the lawsuit was first filed back in 2003. Rumors had Apple Computer negotiating a record-setting settlement with Apple Corps; others had Apple Computer spinning the iTunes Music Store out into a separate business, possibly selling Apple Corps a partial or even controlling stake. And nearly everybody has been wondering whether Steve Jobs will negotiate a deal to get Beatles recordings available for sale on the iTunes Music Store. To date, no legal digital music services carry any Beatles music.

I have no inside track on the case, but I don't expect it to be resolved in the near future. If history is any guide, the longer these things simmer, the more likely they are to become irrelevant or veer off in unexpected directions. Apple and Apple have been going at each other for nearly 25 years, with this flare-up already nearly 3 years old. Anything could happen.

Personally, I don't expect Apple Corps is in any hurry to get Beatles recordings into iTunes or other digital download services, which may preclude a settlement which involves Apple Computer getting access to the Beatles catalog. I'm sure Beatles tracks are a frequently swapped commodity on illegal file-sharing services, but time is on Apple Corps' side. The company waited five years to release Beatles albums on CD, and has found substantial success repackaging Beatles material (as the recent Anthology and One releases demonstrate) and releasing alternate versions (for instance, re-issuing the original American versions of Beatles albums released on Capital records, and stripping out Phil Spector's production on Let It Be). Scarcity only makes the Beatles material more valuable, and Apple Corps has long been focused on maximizing the value derived from its Beatles properties.

Persistent music industry scuttlebutt says Apple Corps has tentatively explored limited-time, exclusive arrangements with online music vendors (particularly Microsoft), but at premium prices: one figure I heard from several sources in 2004 was $15 million for exclusive rights to sell Beatles tracks online for six months. Given the low profit margins of all online music businesses, only those with deep pockets could even consider that sort of money-losing deal.

In the end, Apple Computer and Apple Corps share more than a name and a litigation history: they're both perceived as products of the enthusiasm and hopefulness of 1960s culture which held that it was possible for a good idea to change the world. The real surprise might be if someone other than Apple Computer brought the Beatles online.

The first link for each thread description points to the traditional TidBITS Talk interface; the second link points to the same discussion on our Web Crossing server, which provides a different look and which may be faster.
How to covert a music file to a Podcast? An attempt to make iTunes see an MP3 file as a podcast leads to discussions of how iTunes handles filesShow full article

The first link for each thread description points to the traditional TidBITS Talk interface; the second link points to the same discussion on our Web Crossing server, which provides a different look and which may be faster.

How to covert a music file to a Podcast? An attempt to make iTunes see an MP3 file as a podcast leads to discussions of how iTunes handles files. (12 messages)

Macs for the very elderly? What considerations need to be addressed when setting up a Mac system for someone who may be facing common symptoms of age such as poor vision and hand dexterity? (6 messages)